MOHD SHAFI SHAH Vs. ORIENTAL TEXTILES CORP

JUDGEMENT

(1.) THIS revision petition is directed against the order dated: 25 -03 -2000 passed by the learned City Judge, Srinagar whereby the petitioners herein were restrained from damaging or alienating the suit property in any form till next date of hearing i.e. 4 -4 -2000. Notices were issued to the petitioners herein to show cause why the order be not made absolute pending consideration on the application for restoration of the suit to its original number which was dismissed in default. This order was passed in application made by the respondents herein before the trial court purporated to be made under section 94 read with Order 39 Rule 1 and section 151 CPC. The relevant facts of the case in brief are that petitioners herein had filed the suit on K -half of the owner of the demised premises namely K.V. Pestonji for ejectment of the respondents and was pending disposal in the court of learned District Judge, Srinagar. The respondents herein had also filed a suit for perpetual injunction against the petitioners herein. Vide order dated 13 -6 -1998, the District Judge had ordered the trial of both these suits together. The averments made in the above said application are that vide order dated: 17 -3 -1999, the learned District Judge behind the back of the respondents transferred tie case of perpetual injunction for trial to the com of City Judge, Srinagar. As the respondents had no knowledge of the pendency of the case to the transferee court (trial court) so they could not enter appearance on the dates fixed for hearing Resultantly, the suit was dismissed in default on 25 -9 -1999. When the respondents came to know about the dismissal of the suit, they on 24 -11 -1999 filed the application for its restoration which was accompanied by an application made under section 5 of the Limitation Act, whereunder the delay in filing the said application was prayed to be condoned. The petitioners were served with the notices, and they filed their objections on 11 -12 -1999. The case was fixed for arguments, which were heard on the same day and the case was posted for orders on 24 -12 -1999. From 24 -12 -1999, the case was adjourned to 25 -02 -2000. The order could not be drawn on that day because of abnormal law and order situation prevailing in the Valley, and the case was adjourned for 4 -4 -2000. The parties were present on 4 -4 -2000 and the trial court again recorded in the minutes of the proceedings that because of abnormal prevailing disturbed conditions, the order could not be passed. The next date fixed in the case was 6 -5 -2000. The respondents apprehended mischief to the demised property and on 25 -3 -2000 the above said application was made with the allegations that the petitioners herein had set in the process of demolition of the adjoining building giving rise to the apprehension that it was a play employed to dispossess the respondents from the demised premises after getting them razed to the ground. It was contended that the respondents being tenants had statutory right of protection from being evicted without following the prescribed procedure under the J&K Houses and Shops Rent Control Act. That proceeding had to stay under the provisions of the J&K Migrant Immovable Property (Preservation, Protection and Restraint) on Distress Sales Act, 1997. Then right to hold the demised premises peacefully was being threatened so they sought the protection of the Court. On the existence of these peculiar circumstances the trial court dispensed with the service of notice to the petitioners and passed the impugned order. To the show cause notice, the petitioners herein appeared on 4 -4 -2000. On this date, no proceedings could be initiated because of general strike being observed. In the presence of the parties, the case was adjourned for 6 -5 -2000 and the operation of the impugned order was extended upto that date. The petitioners herein instead of showing cause to the show cause notice challenged the order on 1 -6 -2000 by filing this revision petition. The order has been challenged inter -alia on the ground: -

(2.) THE counsel appearing for the petitioners has reiterated the grounds taken in the revision petition in his arguments and laid stress that this is an ex -parte order passed against them in violation of the mandates of law. The apex court has laid the guidelines in the case of Mogan Stanley Mutual Fund Vs. Dartick Dass  (1994 (4) SCC 225) for the issuance of ex -parte injunction which can only be granted under exceptional circumstances. The learned counsel has quoted para 36 of the said judgment, which enumerates the factors which should weight with the court in the grant of ex -partie injunction and these are:

(3.) IN rebuttal the counsel appearing for the respondents has contended that the trial court had the power to issue temporary injunction even in the circumstances not covered by Order 39 CPC by virtue of its duty to do justice between the parties before it. He has referred section 94 CPC and stressed that there is no such expression used therein which expressly prohibits the issuance of temporary injunction in circumstances not covered by Order 39 CPC or any rules made under the Code. In support of this contention he has cited the case of Manchar Lal Chopra Vs. Rai Bahaudar Rai Raja Setfa Hiralal  (AIR 1962 SC 527). It is advantageous to reproduce the observations made by the apex court in para 18 (page 532) where it has been stressed that inherent jurisdiction of the court to make orders ex -debitor justitiae is undoubtedly affirmed by section 151 of the Code, but that jurisdiction cannot be exercised so as to nullify the provisions of the Code. Where the Code deals expressly with a particular matter, the provision should normally be regarded as exhaustive: -